In Emerson v. LaSalle National Bank, 40 Ill. App.3d 794,
352 N.E.2d 45 (2d Dist. 1976), cited by both parties, the Illinois
Appellate Court reviewed a complaint similar to those filed in
the present case. The first count of the Emerson complaint
sought foreclosure of a trust deed and substantially conformed
to the statutory short form. The second count, as here, sought
a deficiency judgment from the guarantor. The trial court
ordered the foreclosure and sale of the mortgaged property
pursuant to count one and dismissed count two on the grounds
that resolution of the first count adjudicated all matters
alleged in the complaint and constituted an election of
remedies by the plaintiffs. Id. at 795, 352 N.E.2d 45. The
Appellate Court subsequently reversed and remanded the cause to
the trial court with directions to reinstate the count seeking
a deficiency judgment from the guarantor. This disposition
itself reflects that, under Illinois law, a single complaint
can assert a forfeiture claim on a note in one count and a
deficiency claim predicated on a separate guaranty in another
count.

The significance of Emerson to the present case is heightened
by the fact that the general rule against combining a
forfeiture claim with a deficiency claim in the same cause of
action was cited by the Court in support of its final
disposition of the case. The Court reasoned that because a
forfeiture claim must be a separate and distinct cause of
action from a deficiency claim in Illinois, the trial court's
disposition of the forfeiture count could not itself justify
dismissal of the deficiency count. As the result manifests, the
Court did not hold that the two counts could not be asserted
separately in a single complaint.*fn1 No such doctrine
exists under Illinois law. Accordingly, defendant Sheridan's
motion to dismiss must be denied.

In all three cases presently before this Court, defendant
Sheridan has alleged for the first time in his response brief
that a summary judgment would deny him the opportunity to
demonstrate at a full evidentiary hearing that the guaranties
at issue in this case were obtained by duress. Even in these
briefs, however, the defendant has not alleged that the
guaranties were in fact obtained by duress. Moreover, the
defendant has failed to plead or otherwise allege any facts
whatsoever in support of this potential allegation. The
defendant's oblique reference to duress falls far short of the
showing necessary to withstand a motion for summary judgment.
The failure to
plead such an affirmative defense results in the waiver of that
defense. Cf. Roe v. Sears, Roebuck & Co., 132 F.2d 829, 832
(7th Cir. 1943); Federal Savings & Loan Insurance Corp. v.
Szarabajka, 330 F. Supp. 1202, 1203 (N.D.Ill. 1971); First
National Bank of Lincolnwood v. Keller, 318 F. Supp. 339, 345
(N.D.Ill. 1970).

In 80 C 5510, defendant Sheridan also argues for the first
time in his response brief that "no exhibits are attached to
the Complaint demonstrating that Defendant agreed to or
executed an additional guaranty to the first extension [of the
note and mortgage]." Def. Response at p. 2. The defendant fails
to affirmatively allege, however, that he never agreed to or
executed such an additional guaranty. The defendant also fails
to allege or otherwise show any facts supporting this potential
defense. Indeed, as evidenced by exhibits submitted by
plaintiff in support of its motion for summary judgment, the
defendant did, in fact, execute an additional guaranty to the
first extension. Moreover, the "Second Consent of Guarantor,"
executed by the defendant on March 21, 1980, and attached as
Exhibit 12 to the original complaint, expressly acknowledges
the first extension. In this light, the defendant's indirect
suggestion that the complaint is insufficient or that he may
never have agreed to or executed an additional guaranty to the
first extension falls well short of the showing necessary to
survive a motion for summary judgment.

In 80 C 5836, defendant argues that because the copy of the
guaranty attached to the plaintiff's complaint is not signed by
the defendant, the guaranty cannot be enforced against him.
This argument is disingenuous. Again the defendant does not
deny that he signed the guaranty. Indeed, his answer to
plaintiff's original complaint admits that he signed the
guaranty. In this context, under state as well as federal
principles of pleading, the fact that plaintiff attached an
unexecuted copy of the guaranty in the original complaint does
not establish a genuine issue of material fact for purposes of
this motion.

Defendant finally argues that "there is no extension of
guaranty attached to this Complaint that would conform with the
amendment and modification to Junior Mortgage or Modification
to Principal Note." Defendant's Resp. at p. 2. In addition to
failing to allege a material fact in issue, this statement
flatly contradicts the admissions in defendant's answer.
Accordingly, this Court finds no genuine issue of fact
sufficient to deny summary judgment.

For the reasons stated above, the Court denies defendant
Sheridan's motions to dismiss Count III in 80 C 5509 and 80 C
5510 and Count II in 80 C 5836. The Court grants plaintiff's
motions for summary judgment against defendant Arthur Sheridan
in Count III of 80 C 5509 for the amount of $67,509.19 and
costs, in Count III of 80 C 5510 for the amount of $560,011.24
and costs, and in Count II of 80 C 5836 for the amount of
$272,823.62 and costs. It is so ordered.

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.